Citation Nr: 1802371 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-12 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to a compensable disability rating for service-connected left ear hearing loss. 3. Entitlement to a compensable disability rating for service-connected septal rhinoplasty. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to August 1985 and from November 1985 to August 1989. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the RO in February 2015 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. In May 2015 the Board remanded these claims for additional development. At the time of that remand, the Board indicated that a petition to reopen a claim of entitlement to service connection for right ear hearing loss had been raised by the record but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The claims folder still does not indicate this additional claim has been adjudicated, so the Board is again referring this claim to the AOJ. 38 C.F.R. § 19.9 (b). The claim of entitlement to service connection for obstructive sleep apnea requires even more development, so the Board is again REMANDING this claim to the AOJ. However, the Board instead is going ahead and deciding the claims for higher (i.e., compensable) ratings for the left ear hearing loss and septal rhinoplasty. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's nonservice-connected right ear has had Level I hearing loss, and he has no worse than Level I hearing loss in his left ear. 2. The Veteran's service-connected septal rhinoplasty does not cause nasal obstruction greater than 50 percent on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria are not met for a compensable disability rating for the service-connected left ear hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). 2. The criteria also are not met for a compensable disability rating for the service-connected septal rhinoplasty. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.97, DC 6502 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance As concerning these claims being decided, VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. All reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings showing a change in the severity of symptoms and consequent disability during the course of the rating period on appeal, the Board will "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing Loss The Veteran's service-connected left ear hearing loss is currently assigned a 0 percent (i.e., noncompensable) rating under 38 C.F.R. § 4.85, DC 6100. He contends that his hearing impairment in this ear is worse and, thus, should receive a higher level of compensation, that is, a compensable level. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a) and (b). The first thing worth noting, however, is that the Veteran is only service connected for left ear hearing loss. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. However, if impaired hearing is service-connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the nonservice-connected ear qualifies as a disability under 38 C.F.R. § 3.385. See 38 C.F.R. § 3.383(a)(3). In this regard, in order for the left ear hearing loss to be considered 10-percent disabling, it must reach Level X or XI (which are the Roman Numeral designations for hearing loss of a severity that it would equate to a 10 percent rating when the nonservice-connected ear is assigned Level I hearing impairment). However, as will be discussed below, the Veteran's left ear hearing loss results in no worse than Level I hearing impairment. As such, for the entire appeal period, his nonservice-connected right ear is assigned a Level I hearing impairment designation. The Veteran submitted an audiogram report received in March 2009. Although this record contains a result of puretone audiometry testing, it does not include a speech discrimination test (Maryland CNC test) and, therefore, cannot be considered in determining whether he has demonstrated hearing impairment of the extent or level required for VA compensation purposes. See 38 C.F.R. § 4.85. The Veteran conversely underwent a VA audiological examination in October 2009 addressing all measuring requirements. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 25 40 50 His puretone average was 34 for the left ear. Speech recognition was 98 percent in the left ear. These audiometry test results equate to Level I hearing loss in his left ear and Level I hearing loss in his right ear (to reiterate, assigned because he is only service connected for his left ear hearing loss). This level of hearing impairment, in turn, warrants a noncompensable rating. 38 C.F.R. § 4.85. The October 2009 VA examiner observed the Veteran had difficulty hearing "in noise." The Veteran underwent another VA audiological examination more recently in November 2015. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 55 55 His puretone average for the left ear was 43. Speech recognition was 100 percent in his left ear. These audiometry test results also equate to Level I hearing loss in his right ear and Level I hearing loss in his left ear, which as mentioned in turn correlates to a noncompensable rating. 38 C.F.R. § 4.85. The VA examination report noted the Veteran's complaints of difficulty communicating effectively in the presence of background noise and in everyday conversation. The evidence of record reflects no certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz to warrant consideration of this disability as an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86(a) and (b). So for the entire period at issue, the Veteran's service-connected left ear hearing loss has not met the requirements for a compensable disability rating. He has not submitted any evidence showing entitlement to a higher disability rating for this period in dispute. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. As already alluded to, the respective VA examiners noted the Veteran's reports of difficulty hearing conversations, particularly with background noise. The Board finds that is sufficient to comply with the applicable VA policies. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. Through clinical studies of veterans with hearing loss, VHA found that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (Apr. 12, 1994). In Martinak decision already cited, see 21 Vet. App. at 455, the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. With this in mind the Board has considered the Veteran's statements with regard to his hearing loss disability, as noted in his submitted statements, examination records and his hearing testimony before the Board. However, by its very nature his disability involves a difficulty with hearing acuity. He has reported having difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture. Consider also there recently was a panel decision issued on December 13, 2017, by the Veterans Court (CAVC) affirming a December 2015 Board decision that, like here, had denied a compensable schedular rating for hearing loss (though in that case it was bilateral, i.e., affecting both ears), as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 4.16. See Rossy v. Shulkin, No. 16-0720 (December 13, 2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extraschedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy as well. In Doucette, the Court addressed how to conduct an extraschedular analysis-specifically, the first Thun inquiry-in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty understanding conversations, particularly in noisy or crowded circumstances. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. See Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, the Veteran has not alleged, and the evidence does not otherwise show, any symptoms indicative of an unusual or unique disability picture not contemplated by the rating criteria; thus, the schedular criteria are wholly adequate. As a result, extra-schedular referral is not required. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In making these determinations, the Board has considered lay statements from the Veteran attesting to the impact of his hearing loss. The Board finds that the functional effects of his left ear hearing loss disability are adequately addressed by the record. The Board is sympathetic to his position that a higher rating is warranted for his service-connected left ear hearing loss, but the audiometric examination results, as compared to the rating criteria, do not warrant any greater rating. Accordingly, the Board finds that the preponderance of the evidence weighs against this increased-rating claim. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Septal Rhinoplasty The Veteran also is requesting a higher (i.e., compensable) rating for his service-connected septal rhinoplasty - more specifically for the residuals of it. This additional disability is evaluated pursuant to 38 C.F.R. § 4.97, DC 6502. Under DC 6502, deviation of the nasal septum warrants a 10 percent rating (the maximum schedular rating) when there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6502. The Veteran, however, does not have either impairment, at least not to those extents. The rating schedule authorizes the assignment of a noncompensable evaluation in every instance in which the rating schedule does not provide such an evaluation and the requirement for a compensable evaluation has not been met. 38 C.F.R. § 4.31. In October 2009, the Veteran underwent a VA compensation examination. The VA examiner noted that the Veteran had fractured his nose several times prior to service. He had no military nasal trauma but had a rhinoplasty in approximately 1988. The examination report noted there was no history of nasal allergy, osteomyelitis, or sinusitis. There was no breathing difficulty and no speech impairment. Upon examination, the Veteran showed no evidence of sinus disease or soft plate abnormality. There were no signs of nasal obstruction; no nasal polyps were present; there was no septal deviation, and no rhinoscleroma present. The VA examiner observed the Veteran was then currently employed full-time as a pilot and had not lost time from work during the immediately preceding 12-month period. He was diagnosed with status post rhinoplasty with residual sinus pressure. The VA examiner indicated there were no significant effects on the Veteran's usual occupation and no effects on the problem on usual daily activities. In December 2015, the Veteran underwent another VA compensation examination to reassess the severity of his service-connected septal rhinoplasty. The VA examiner stated that the Veteran had rhinitis. However, the Veteran did not have obstruction of the nasal passage greater than 50 percent on both sides or complete obstruction on either side. There was no permanent hypertrophy of the nasal turbinates and no nasal polyps. The VA examiner concluded that the Veteran's condition did not impact his ability to work. The Veteran's subjective symptoms show that he experiences sinus pressure. See, e.g., April 2011 VA Form 9 (Substantive Appeal to the Board). Nevertheless, the Board finds that the Veteran's service-connected disability more closely approximates the assigned noncompensable disability rating. 38 C.F.R. § 4.97, DC 6502. The next higher rating, 10 percent, requires evidence of nasal deviation of the septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side; however, these symptoms are not present. Therefore, a compensable rating is not warranted. The Board also has considered other possible Diagnostic Codes. However, the Veteran's medical history and his current diagnosis demonstrate that DC 6502 most appropriately reflects his symptoms associated with his disability. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of DC should be upheld if supported by explanation and evidence). The medical evidence of record does not show he has any other nose, throat, larynx or pharynx condition during the period on appeal to warrant consideration of another DC. Accordingly, the evidence of record has not shown that the Veteran's nasal disability warrants a compensable rating and the claim is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board notes that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased-rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, though, the evidence does not show, and the Veteran does not contend, that he is unemployable because of his service-connected nasal disability (indeed, either alone or even in combination with his service-connected left ear hearing loss). Therefore, further consideration of a TDIU is not warranted in this instance. In sum, the Board finds that a compensable rating for the Veteran's service-connected septal rhinoplasty is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to a higher rating, so this doctrine is inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. ORDER Entitlement to a compensable disability rating for left ear hearing loss is denied. Entitlement to a compensable disability rating for septal rhinoplasty also is denied. REMAND In May 2015, the Board remanded the Veteran's remaining claim for service connection for obstructive sleep apnea in order to afford him a VA examination for an opinion on the etiology of this condition - particularly in terms of its purported relationship or correlation with his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In December 2015, to this end, the Veteran was provided a VA examination to assist in making this important determination. The VA examiner's opinion is not included in the examination report, however. The December 2015 Supplemental Statement of the Case (SSOC) references negative opinions that the December 2015 VA examiner offered concerning the Veteran's sleep apnea claim. But these referenced opinions do not appear to be attached to the Veteran's virtual (i.e., paperless) claims folder. This examiner's opinions concerning the etiology of the sleep apnea must be obtained and associated with the Veteran's claims folder so they may be considered in deciding the appeal of this claim. If no such opinions are available, then the Veteran must be reexamined for this necessary opinion or, at the very least, this needed medical comment offered into the record. Accordingly, this claim is REMANDED for the following action: 1. Retrieve and associate with the Veteran's claims file any opinions (as referenced in the December 2015 SSOC) written by the December 2015 VA compensation examiner concerning the etiology of the Veteran's sleep apnea. If there are no such opinions, then have the December 2015 VA compensation examiner (or suitable substitute) submit this needed comment concerning the nature, extent, and etiology of the Veteran's obstructive sleep apnea. The examiner, whoever designated, must review the entire record, to specifically include a complete copy of this remand. Based on this review, the examiner is specifically asked to respond to the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's eventual diagnosis of obstructive sleep apnea in January 2009 is a condition that he had first experienced during his military service - including in April 1989 despite what was then determined to have been a negative sleep study. The Veteran has argued that the requirements for this diagnosis have changed since that sleep study conducted in April 1989, during his service, so in effect that he had sleep apnea during his service if one considers these new instead of old standards. (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea alternatively was caused by his service-connected septal rhinoplasty? (c) Still yet, is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea is being aggravated by his service-connected septal rhinoplasty? In responding, the examiner must provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his obstructive sleep apnea. Further, in making these important determinations, the examiner must consider the documented symptoms the Veteran had during his service of snoring, episodes of apnea, excessive daytime somnolence and involuntarily falling asleep. The examiner also must review the results of the sleep study in 1989 to determine whether, by current medical literature or standards (versus those in effect at the time) the Veteran had sleep apnea. 2. After completing any other development deemed necessary, readjudicate this claim for service connection for sleep apnea. If this claim continues to be denied, send the Veteran an SSOC concerning this claim and give him and his representative time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs